Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. MH101020 of San Diego County, Roger W. Krauel, Judge.
McINTYRE, J.
A jury found true the allegation that Joseph Gentile was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (the Act). (Welf. & Inst. Code, § 6600 et seq.; undesignated statutory references are to the Welfare and Institutions Code.) The trial court committed Gentile to a secure mental health facility for an indeterminate term.
On appeal, Gentile argues that: (1) the People did not comply with statutory procedures when they initiated civil commitment proceedings against him; (2) there is insufficient evidence that his mental disorder caused him serious difficulty in controlling his criminal sexual behavior; (3) the court erred in allowing the prosecution experts to testify to unreliable hearsay and ultimate legal conclusions; (4) the court erred in instructing the jury; and (5) due process required the use of up-to-date and properly approved protocols. As to claims of procedural, evidentiary and instructional error, Gentile asserts that appointed counsel's failure to make timely objections constituted ineffective assistance. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Gentile pleaded guilty to committing a lewd act upon a child in violation of Penal Code section 288, subdivision (a), and admitted the offense involved substantial sexual contact with the victim within the meaning of Penal Code section 1203.066, subdivisions (a) and (b). In January 1994, the court sentenced Gentile to three years in prison. The court revoked Gentile's parole in April 1995 and again in 1997.
In 2004, Gentile pleaded guilty to attempted kidnapping of a nine-year-old child from her school, and the court sentenced him to 18 months in prison. Gentile was paroled on April 9, 2005. Police arrested him for a parole violation in February 2006 after they found him pushing a grocery cart behind the Girl Scout Headquarters in Balboa Park. Gentile had a Playboy magazine in his possession at the time. His release date for the ensuing parole revocation was February 22, 2007.
On February 20, 2007, two days before the scheduled release date, Dr. Dawn Starr, a clinical psychologist, evaluated Gentile at Avenal State Prison. She found that he met the criteria for classification as an SVP. Dr. Robert Owen, another psychologist, evaluated Gentile two days later and concluded that he did not meet the SVP criteria. On the same day, the Board of Parole Hearings imposed a 45-day hold on Gentile's release through April 8, 2007, pursuant to section 6601.3.
On April 2, 2007, the Department of Mental Health recommended that the district attorney initiate civil commitment proceedings against Gentile. Included with the letter were the detailed evaluations by Dr. Starr and Dr. Owen and two one-page clinical evaluation summaries. One summary was dated April 2, 2007, and signed by Richard Romanoff, Ph.D., and the other was undated, unsigned but included the hand-printed name Michael Musacco. The summaries indicated that both Dr. Romanoff and Dr. Musacco concluded that Gentile met the criteria for being an SVP.
The People filed their petition for involuntary treatment of Gentile as an SVP on April 3, 2007. Later the same month, they amended the petition to request that Gentile be committed for an indeterminate term pursuant to section 6604. Attached to the amended petition were: (1) Dr. Romanoff's evaluation prepared on April 9, 2007, following his interview of Gentile on March 9, 2007 and (2) Dr. Musacco's evaluation prepared on March 9, 2007, following his interview of Gentile on the same day. At the close of the August 2007 probable cause hearing, the court bound Gentile over for trial.
Jury trial on the involuntary commitment was held in December 2008. Gentile stipulated that the 1994 conviction established the first element for classification as an SVP under section 6600, subdivision (a)(1). Dr. Romanoff and Dr. Musacco testified at trial on behalf of the People, each opining that Gentile satisfied the criteria for being adjudged an SVP. Each stated that schizophrenia or schizoaffective disorder in the form of command auditory hallucinations impacted Gentile's ability to control the pedophilia and created a serious, well-founded risk that he would commit a sexual crime in the future. Dr. Clark R. Clipson, the defense psychologist, did not believe Gentile met the SVP commitment criteria because he had not reoffended during the nine years he was free in the community and had a low risk of reoffending based on Dr. Clipson's scoring of the Static-99 risk assessment instrument.
DISCUSSION
I. The People Complied With Statutory Requirements for Initiating SVP Proceedings
Gentile contends that "something was amiss" in the way the People initiated SVP proceedings against him. He notes: (1) the Department of Corrections and Rehabilitation referred him for evaluation only days before his scheduled February 22, 2007 release from prison in spite of the fact his psychological history was known; (2) there is no evidence he was in custody when the district attorney filed the SVP petition; and (3) the petition lacked the necessary supporting evaluations. Stressing due process concerns, he argues that "it appears the constitutional rights were dispensed with via a series of clever and deceptive maneuvers. The end result was a proceeding held long after [Gentile] should have been released from commitment." We granted Gentile leave to file a supplemental brief to address People v. Lara (2010) 48 Cal.4th 216, and In re Lucas (2010) 182 Cal.App.4th 797, cases decided after he filed his reply brief. In that brief, Gentile argues that the release date of February 22, 2007 was incorrect, the document ordering the 45-day hold on his release was a day late, and the Board of Parole Hearing's attempt to issue the order nunc pro tunc to 12:01 a.m. on February 22, 2007 demonstrated its lack of good faith. Although we agree that Gentile has cause to complain about the People's delay in referring him for evaluation, we disagree that he is entitled to reversal.
Gentile acknowledges that no one challenged the timeliness of the referral and petition in the trial court. In general, a party forfeits his argument on appeal by failing to object below. The purpose of the doctrine of forfeiture is to encourage a defendant to raise errors in the trial court " ' "so that they may be corrected or avoided and a fair trial had...." ' " (People v. Simon (2001) 25 Cal.4th 1082, 1103 [venue]; see, also People v. Scott (1994) 9 Cal.4th 331, 353-356 [sentencing]; People v. Saunders (1993) 5 Cal.4th 580, 590 (Saunders) [waiver of jury trial on prior convictions].) However, Gentile contends the issue of timeliness was not forfeited because any failure to object constituted ineffective assistance of counsel.
To prove ineffective assistance of counsel, Gentile must show that: (1) counsel's performance fell below an objective standard of reasonableness based on the performance expected of a reasonably competent attorney and (2) he was prejudiced in that there is a reasonable probability the result would have been different absent counsel's unprofessional errors. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) From this limited record, it appears there was good reason why counsel did not challenge the timeliness of the petition below.
Contrary to Gentile's reading of the Act, only one deadline affects the timeliness of the SVP petition: Subject to a single exception not applicable here, the "petition may be filed under this section if the individual was in custody pursuant to his... parole revocation term, or a hold placed pursuant to Section 6601.3, at the time the petition is filed." (§ 6601, subd. (a)(2), italics added.) It is true that section 6601, subdivision (a)(1) states that the Department of Corrections and Rehabilitation "shall" refer a person in custody for evaluation "at least six months prior to that individual's scheduled date for release from prison." However, "even if we were to construe the six-month rule as mandatory, there is absolutely no indication that this rule imposes any time limit on the filing of the petition or the completion of the commitment process." (People v. Talhelm (2000) 85 Cal.App.4th 400, 406.) Accordingly, the question of timeliness turns on whether Gentile was in custody when the district attorney filed the petition on April 3, 2007.
The Board of Parole Hearings may order a person referred to the Department of Mental Health to remain in custody for no more than 45 days beyond his or her scheduled release date for full evaluation under section 6601 "[u]pon a showing of good cause." (§ 6601.3; Pen. Code, § 5075.) Gentile argues there is no evidence in the record to show that Department of Corrections and Rehabilitation secured a timely hold on him pursuant to section 6601.3, or "that any 'good cause' justified such a hold." In response to our request, the Attorney General produced a certified copy of the February 22, 2007 order imposing a 45-day hold on Gentile through midnight on April 8, 2007. We take judicial notice of that document pursuant to Evidence Code sections 452, subdivision (c) and 459, subdivision (b). If Gentile had reason to challenge the timeliness of the petition at the start of trial court proceedings, we assume the People would have produced the same order. Nothing on the face of the order suggests lack of good cause. To the extent Gentile argues that the February 22, 2007 release date was incorrect, this type of mistake in calculation would constitute a "good faith mistake of fact or law" and not invalidate the subsequent SVP petition. (§ 6601, subd. (a)(2); People v. Wakefield (2000) 81 Cal.App.4th 893, 897-898.) We therefore reject Gentile's claim that counsel was ineffective for failing to object and conclude the alleged procedural error was forfeited.
The absence of any record showing the grounds for the Department of Corrections and Rehabilitation's request for a hold prevents us from addressing the question whether counsel had reason to object based on lack of good cause. "Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus." (People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on a different ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on a different ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; see e.g., Ledesma, supra, 43 Cal.3d 171.)
II. There Is Sufficient Evidence To Support the Finding That Gentile Satisfied the SVP Criteria
Gentile makes a two-pronged attack on the sufficiency of the evidence that he is an SVP. First, after citing the statutory definition of an SVP, he adds an element, arguing that due process requires that the People prove the person alleged to be an SVP suffers from a volitional impairment that makes it difficult, if not impossible, for the person to control his dangerous behavior. Relying on language in Kansas v. Crane (2002) 534 U.S. 407, 412-413 (Crane), Kansas v. Hendricks (1997) 521 U.S. 346, 358 (Hendricks) and In re Howard N. (2005) 35 Cal.4th 117, 128 (Howard N.), he contends there must be a "lack of control" determination, a finding of "connective causation" or "cause and effect." Second, Gentile argues reversal is required because the People failed to allege or prove this element. We reject Gentile's first point because it is contrary to settled law. As to the second point, we conclude there is sufficient evidence to support the finding that Gentile is an SVP as defined in the Act.
A. Elements of the SVP Determination
A person is subject to indeterminate commitment if the judge or jury finds beyond a reasonable doubt that he or she is an SVP. (§ 6604.) The Act defines the SVP as (1) "a person who has been convicted of a sexually violent offense against one or more victims" and (2) "who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1); italics added.) In response to constitutional challenges seeking a more precise constitutional standard, the United States Supreme Court and the California Supreme Court clarified-in the language quoted by Gentile-that "to be involuntarily civilly committed as a sexually violent predator, the person must, as a result of mental illness, have serious difficulty controlling his dangerous behavior." (Howard N., supra, 35 Cal.4th 117 at p. 128, italics added, citing Crane, supra, 534 U.S. at pp. 412-413, Hendricks, supra, 521 U.S. at p. 358, and their progeny.) However, "lack of control" or "cause and effect" are not separate elements of the SVP finding but included within the approved statutory definition.
Hendricks upheld the Kansas Sexually Violent Predator Act against constitutional challenge. (Hendricks, supra, 521 U.S. at p. 350.) Section 6600 is substantially similar to the Kansas statute. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1163 (Hubbart).) In Crane, the United States Supreme Court rejected the claim that Hendricks required the State of Kansas "always to prove that a dangerous individual is completely unable to control his behavior." (Crane, supra, 534 U.S. at pp. 411, 415, italics in original.) In so doing, the court observed that "the Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules. For one thing, the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment." (Id. at p. 413, citing Hendricks, supra, 521 U.S. at p. 359.)
Near seven years ago, in People v. Williams (2003) 31 Cal.4th 757, 759 (cert. den. sub nom. Williams v. California (2004) 540 U.S. 1189), the California Supreme Court rejected the defendant's claim that Crane required a separate jury instruction on the need to find serious difficulty in controlling behavior. The Williams court ruled that the definition of an SVP set forth in section 6600, subdivision (a)(1) "inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one's criminal sexual behavior." (People v. Williams, supra, 31 Cal.4th at p. 759; see also In re Lemanuel C. (2007) 41 Cal.4th 33, 38-40 [civil commitment under § 1800 does not require a finding that the inability to control behavior results in a serious and well-founded risk of reoffense].) Taken together, Crane and Williams make clear that the language of section 6600, subdivision (a)(1) satisfies due process and the Constitution does not require a separate allegation or finding of "cause and effect."
B. The Record Supports the Jury's Findings
Having concluded that the language of section 6600, subdivision (a)(1) encompasses the required findings, we turn to the question whether the record supports the jury's true finding that Gentile is an SVP. When a party challenges the sufficiency of the evidence to support commitment under section 6600, appellate courts apply the same standard of review applied to commitments under the mentally disordered offender (MDO) law, that is, the standard applicable to criminal convictions. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.) Accordingly, we must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the jury finding. (Id. at p. 466, citing People v. Johnson (1980) 26 Cal.3d 557, 576-578.) We "may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment." (People v. Poe (1999) 74 Cal.App.4th 826, 830.)
There is no dispute that Gentile satisfied the first two criteria set forth in section 6600, subdivision (a)(1). Gentile stipulated that the 1994 conviction was a qualifying offense. The experts also agreed he currently suffered from diagnosed mental disorders. The People's experts Dr. Musacco and Dr. Romanoff testified that Gentile suffered from: (1) pedophilia; (2) schizophrenia or schizoaffective disorder; or (3) psychotic disorder, not otherwise specified. Dr. Clipson, the defense expert, diagnosed Gentile's mental disorders as: (1) pedophilia and (2) a mood disorder with psychosis. All three experts acknowledged that Gentile had long suffered from command auditory hallucinations which included voices he attributed to Satan telling him to molest children. Thus, the only dispute is whether the People proved that the diagnosed mental disorders made Gentile "a danger to the health and safety of others in that it is likely that he... will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) In deciding whether an accused SVP is "likely" to reoffend, the implied question is whether that person presents a "serious and well-founded risk" of committing sexually violent criminal acts if set free in the community. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 255, italics omitted, quoting People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) Viewing the record in the light most favorable to the judgment, we conclude there is sufficient evidence to support the jury's finding that he satisfied this element of the SVP definition.
Based on the written reports and their personal interviews with Gentile in 2007, both Dr. Musacco and Dr. Ramanoff concluded that, because of Gentile's prior history of sexually violent acts, chronic mental disorder and inability to control deviant urges, he was likely to continue to engage in sexually violent criminal behavior if released. They highlighted the uniqueness of Gentile's combination of mental disorders, stating it was not typical for a pedophile to suffer also from schizophrenia and/or a psychotic disorder. Dr. Clipson agreed. All three experts noted that Gentile's cognitive distortion of reality persisted as shown by 2007 statements that the five-year-old victim initiated the 1993 molestation and "liked it." Gentile self-reported that the pedophilia started at age 15 and involved six children, many more than he was convicted of molesting. Gentile's psychotic or schizophrenic disorders were characterized by "voices" or command auditory hallucinations, often in the form of Satan telling him that he could never have a normal relationship with a woman and he should molest children. Dr. Clipson agreed with Dr. Romanoff that the auditory commands made Gentile a greater risk of reoffending than the average pedophile. Dr. Musacco and Dr. Romanoff testified the interaction of the disorders was a significant factor in their conclusions that Gentile posed a serious and well-founded risk of reoffending.
Both Dr. Romanoff and Dr. Clipson acknowledged that medication can often control depression and psychotic symptoms such as the voices and hallucinations. However, the People's experts and the defense expert disagreed on their assessment of Gentile's ability to stay on his medication and comply with a treatment regimen if released to the community. Gentile was not taking anti-psychotic medication at the time Dr. Musacco interviewed him in 2007 because he disliked the side effects. However, he told Dr. Clipson in 2008 that he was taking anti-depressant medication and not experiencing hallucinations. Gentile testified at trial that he could shut out the voices and the medication made them disappear. He stated that he wanted to take the medication now in order to better his life. However, Dr. Clipson acknowledged on cross-examination that Gentile had an incomplete relapse prevention plan.
III. Expert Testimony Was Properly Before The Jury
The parties' in limine motions focused on the anticipated trial testimony of the expert witnesses. The court granted the defense motion to limit references to Gentile's 1981 homicide conviction, which was reversed on appeal and later dismissed, and to exclude evidence of the treatment protocol at Coalinga State Hospital. The court also required that the People provide a foundation for the admission of the so-called "Padilla Memorandum." With those exceptions, the court granted the People's motion to allow all reliable evidence reasonably relied upon by the experts over defense objections.
On appeal, Gentile contends the court erred in allowing the People's experts to: (1) present inadmissible hearsay evidence in the guise of explaining their opinions and (2) offer testimony on the ultimate questions the jury was charged with deciding, that is, whether Gentile satisfied the criteria for commitment as an SVP. He also argues here, and in a separate section on instructional error, that "[c]learly absent from the jury instructions-before or after presentation of evidence-was an instruction limiting the manner in which all this hearsay evidence could be considered."
Gentile forfeited claims of evidentiary error by failing to make a timely objection on these grounds when the experts testified at trial. (Evid. Code, § 353; People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3 (Jennings); People v. Miller (1994) 25 Cal.App.4th 913, 916-917.) We reject Gentile's claim that it would have been futile to object to the admission of certain expert testimony in light of the court's in limine ruling. The reason the party seeking exclusion must object when the evidence is actually offered to preserve the issue for appeal also supports the conclusion that objection at trial would not be futile. "[U]ntil the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility." (Jennings, supra, 46 Cal.3d at p. 975, fn. 3.) Gentile also forfeited any claim of error in admitting hearsay evidence by failing to request the limiting instruction he now declares was essential. (Evid. Code, § 355; People v. Simms (1970) 10 Cal.App.3d 299, 311 (Simms).)
Although the claims of evidentiary error were not preserved, we nonetheless consider and reject Gentile's arguments on their merits in light of his claim that trial counsel was constitutionally ineffective for failing to object.
A. The Experts' Reliance on Hearsay
When the Department of Corrections and Rehabilitation refers a person to the Department of Mental Health for evaluation pursuant to section 6601, the evaluators use a standard protocol to assess "diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c).) It is customary for the People to present results of mental health evaluations at trial in the form of expert testimony to help the jury determine whether the person named in the petition meets the criteria for commitment as an SVP. (See., e.g., People v. Ward (1999) 71 Cal.App.4th 368, 373-374 (Ward).) "In civil commitment cases, where the trier of fact is required by statute to determine whether a person is dangerous or likely to be dangerous, expert prediction may be the only evidence available. [Citations.] When the standard of proof for commitment is beyond a reasonable doubt, the evidence is admissible. [Citations.]" (Ibid.) The trier of fact is left to decide what weight to give the expert opinion. (Ibid.)
An expert witness may base his opinion on "matter... perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates...." (Evid. Code, § 801, subd. (b).) Section 6600, subdivision (a)(3) authorizes the use of multiple hearsay to prove the details of the qualifying sex offenses in SVP proceedings. (People v. Otto (2001) 26 Cal.4th 200, 203 (Otto).) The statute reads in part: "The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health." (§ 6600, subd. (a)(3).) The expert may explain the reasons for his opinions on direct examination, including the matters he considered in forming them. "However, prejudice may arise if, ' "under the guise of reasons, " ' the expert's detailed explanation " '[brings] before the jury incompetent hearsay evidence.' " (People v. Montiel (1993) 5 Cal.4th 877, 918 (Montiel).) Thus, an expert witness may not reveal on direct examination the actual content of reports prepared by nontestifying experts. (People v. Campos (1995) 32 Cal.4th 304, 308.) The court may exclude hearsay matter if it is irrelevant, unreliable or its potential for prejudice outweighs its probative value under Evidence Code section 352. (People v. Catlin (2001) 26 Cal.4th 81, 137.) Reliance on victim hearsay statements in SVP proceedings requires that the statements "contain special indicia of reliability to satisfy due process." (Otto, supra, 26 Cal.4th at p. 210.) However, "[a]s a general rule, out-of-court statements offered to support an expert's opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert's opinion." (People v. Dean (2009) 174 Cal.App.4th 186, 193 (Dean).)
Rules regarding what is and is not admissible hearsay do not discourage disputes where "an expert's need to consider extrajudical matters" and the "jury's need for information sufficient to evaluate an expert opinion" may conflict with "an accused's interest in avoiding substantive use of unreliable hearsay." (Montiel, supra, 5 Cal.4th at p. 919.) Absent an abuse of discretion, we leave rulings on these disputes to the trial court's sound judgment. (Ibid.; Dean, supra, 174 Cal.App.4th at p.193.) We conclude that in general, there was no abuse of discretion. To the extent the jury heard some inadmissible hearsay, the error was harmless in light of testimony later provided by Gentile himself.
Here, the dispute focuses on the amount of detail the experts drew from reports and evaluations prepared by others, going beyond the mere existence of the qualifying conviction to discuss details about the predicate offense and statements made by Gentile during prior psychological interviews. Gentile challenges admission of the following testimony by Dr. Musacco: facts underlying Gentile's 1993 qualifying conviction; Gentile's references to the five- and seven-year-old victims of uncharged offenses as "lesbians"; information that appears in a 1993 evaluation prepared by Dr. DiFrancesca including her diagnosis and observation that Gentile picked his skin and sobbed during the interview; facts concerning Gentile's low average intelligence, employment history, lack of long-term adult relationships, picking his skin while in prison, and admission of uncharged offenses; facts underlying the 2004 conviction of attempted kidnapping; and the details of Gentile's parole violations. He also challenges admission of portions of Dr. Romanoff's testimony, including details of the 1993 qualifying conviction, earlier manifestations of Gentile's mental disorders and family history, Gentile's employment history, Gentile's low average intellectual ability, details of the 2004 attempted kidnapping, and Gentile's reports of pre-1993 uncharged offenses of sexual involvement with minors. Gentile also argues the experts' failure to identify the source of the hearsay evidence made it impossible to determine its reliability.
Contrary to Gentile's argument, both Dr. Musacco and Dr. Romanoff identified the two primary sources of information used in their evaluation of Gentile: (1) records which included arrest reports, court records, probation reports, and files documenting his mental health and medical history and (2) a clinical interview which included a mental status examination. These are the types of hearsay that experts are entitled to rely upon. (See, e.g., Otto, supra, 26 Cal.4th 200; and People v. Campos (1995) 32 Cal.App.4th 304.) More importantly, Gentile does not specify how the hearsay testimony drawn from those documents was unreliable.
We also reject the claim that the testimony cited by Gentile on appeal went beyond permissible level of detail. That testimony was properly before the jury to explain the nature of Gentile's mental disorders, how they manifested over many years, and why the interaction of pedophilia with the command auditory hallucinations associated with schizophrenia or psychotic disorder supported the expert opinions that Gentile satisfied the SVP criteria. Indeed, Gentile supplied most of the same details regarding his personal history, mental disorders, and the 1993 and 2004 offenses, as well as the uncharged offenses, in his trial testimony.
B. Expert Testimony Regarding "Ultimate Issues"
Contrary to Gentile's argument here, expert opinion is not objectionable because it "embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) Gentile ignores the statutory scheme which permits experts in SVP proceedings to explain why they believe the person named in the petition is or is not an SVP. (§ 6601, subd. (c); see, e.g., Otto, supra, 26 Cal.4th at p. 204.) At trial, the People still bear the burden of proving beyond a reasonable doubt that the defendant is an SVP. (§ 6604; Hubbart, supra, 19 Cal.4th at p. 1147.) Here, the court instructed the jury on how to evaluate the expert testimony and told the jury it was required to independently determine whether the People met their burden of proof beyond a reasonable doubt. (CALCRIM Nos. 220, 332, & 3454.) Accordingly, we conclude the court did not abuse its discretion in permitting the experts to testify whether, in their opinion, Gentile met the requirements for commitment as an SVP.
IV. The Court Properly Instructed the Jury
Next, Gentile contends the court committed instructional error by failing to instruct the jury on: (1) the limited use of hearsay offered as a basis for expert opinion and (2) the cause-and-effect relationship between any mental disorder and a "serious" impairment of volitional control. There is no merit in these contentions.
As to the first point, Gentile forfeited the claim of instructional error by failing to object and request a cautionary instruction. (Evid. Code, §§ 353, 355; Simms, supra, 10 Cal.App.3d at p. 311.) Gentile correctly notes that the court ordinarily cures hearsay problems with a limiting instruction that "matters admitted through an expert go only to the basis of [the expert's] opinion and should not be considered for their truth." (Montiel, supra, 5 Cal.4th at p. 919.) However, we already explained that most, if not all, of the challenged hearsay was properly before the jury and that Gentile himself supplied the details of his family, mental health and criminal history.
We also explained in our discussion of Gentile's challenge to the sufficiency of the evidence that the statutory definition of an SVP satisfies due process requirements. The court was not required to instruct the jury that the People had to prove the additional element that the alleged SVP had serious difficulty in controlling criminal sexual behavior as a result of his mental disorders. (Williams, supra, 31 Cal.4th at p. 759.)
V. The Evaluation Protocols Satisfied Due Process
Gentile challenges the Department of Mental Health evaluation protocol on due process grounds. First, he contends the Static-99 risk assessment tool is based on outdated recidivism statistics and unfairly over predicts the likelihood of recidivism. On this point, Gentile also asserts that the Department of Mental Health "affirmatively sought to suppress the truth" about the Static-99 by prohibiting publication of research conducted by Dr. Jesus Padilla, a psychologist at Atascadero State Hospital. Second, Gentile argues that the protocol the Department of Mental Health used to decide whether it should recommend filing of an SVP petition was an illegal underground regulation never adopted in accordance with the Administrative Procedure Act (APA). (Gov. Code, § 11340 et seq.) He maintains that the court lacked jurisdiction to proceed on the petition.
A. The Static-99
Gentile forfeited his challenge to the use of the results of the Static-99 by the People's experts because he failed to object to that expert testimony on due process or any other grounds below. (Saunders, supra, 5 Cal.4th at pp. 589-590, quoting United States v. Olano (1993) 507 U.S. 725, 731.) However, in light of Gentile's claim that trial counsel was ineffective by failing to object, we consider and reject the merits of his claim that the Static-99 risk assessment tool is unreliable.
The Static-99 is not subject to a reliability hearing akin to the hearing conducted on new scientific tests in criminal proceedings under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). (People v. Therrian (2003) 113 Cal.App.4th 609, 615-616 (Therrian.) Questions regarding the reliability of results from the Static-99 go to its weight, not its admissibility. The Kelly test "applies to cases involving novel devices or processes, not to expert medical testimony, such as a psychiatrist's prediction of future dangerousness or a diagnosis of mental illness." (Ward, supra, 71 Cal.App.4th at p. 373.) Both Dr. Musacco and Dr. Romanoff described factors they considered along with results on the Static-99 that formed the basis for their expert opinions that Gentile satisfied the SVP criteria. Dr. Musacco and Dr. Romanoff also described recent research suggesting that a declining base rate of recidivism rendered the Static-99 less accurate in distinguishing between those who will or will not reoffend. And although a pretrial ruling prevented Gentile from eliciting the specific reasons why the Department of Mental Health prohibited publication of Dr. Padilla's research, the research was specifically referenced in testimony before the jury.
Given this record, "[w]e are satisfied that no reasonable juror would mistake either expert's use of the Static-99 test as a source of infallible truth on the issue of defendant's risk of reoffending." (Therrian, supra, 113 Cal.App.4th at p. 616.)
B. The Department of Mental Health Protocol
Relying on a 2008 finding by the Office of Administrative Law, before trial Gentile unsuccessfully moved to dismiss the SVP petition on the basis that the protocols set forth in the Department of Mental Health evaluator's handbook constituted invalid underground regulations. He raises the issue again on appeal, arguing that the court lacked jurisdiction to proceed with trial on the petition triggered by recommendations based on those evaluations. Gentile contends that had the Department of Mental Health sought and obtained approval of the protocols set forth in its handbook, "current and accurate statistic, actuarial tables, and risk assessments would have resulted." We reject his arguments.
We begin by rejecting Gentile's claim that he is entitled to reversal per se because the evaluation protocols were not adopted in compliance with the APA. He cites no case that holds this irregularity deprived the court of jurisdiction in the fundamental sense. As the court observed in People v. Medina (2009) 171 Cal.App.4th 805, 818-819 (Medina), "the probable cause hearing in a SVP proceeding is analogous to a preliminary hearing in a criminal case." Under the rule of People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, regularly applied in SVP proceedings (People v. Hayes (2006) 137 Cal.App.4th 34, 51), irregularities in a preliminary hearing require reversal only if a defendant can demonstrate that he or she was deprived of a fair trial or otherwise suffered prejudice. (Medina, supra, 171 Cal.App.4th at pp. 818-819.) In light of our conclusion that evidence produced at trial supports the jury's true finding that he satisfied the SVP criteria, we also conclude that Gentile has failed to show he was prejudiced by the use of a non-APA approved protocol in the screening process.
VI. Gentile Fails To Show That Trial Counsel Was Ineffective
We have explained in previous sections of this opinion that Gentile failed to establish one or both of the requirements for proving ineffective assistance of counsel under Strickland, supra, 466 U.S. 668 or Ledesma, supra, 43 Cal.3d 171. Accordingly, we conclude there is no merit in the claim trial counsel was constitutionally ineffective for failure to object on grounds of procedural, evidentiary or instructional error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.